Daily Archives: January 11, 2016

Making A Murderer

We spent the weekend convalescing after long needed and much put off dental surgery on Friday.  Of course, there is only one thing to do under such circumstances:  binge-watch some series on Netflix.

The reality show du jour (with the same title as this post) that has captured the public’s imagination is about a guy, Steven Avery, who was wrongfully convicted of a sexual assault in 1985, spent 18 years in prison, and then two years after his exoneration and release was charged with the murder of a young woman.  His real defense to the second charge was that police had framed him, but due to various rulings by the trial judge his lawyers could only hint at that, not argue it.

We’re going to make just a few observations, probably over-informed by our own experiences, and assuming at this point without deciding that Mr. Avery was not only wrongly convicted the first time, but also railroaded and framed the second time, for whatever value readers might find in them, taking all that into account.

First, someone should have told Mr. Avery that the life he knew before his wrongful conviction and 18 years of imprisonment was long gone, and that under no circumstances should he return to live in the same place that wrongfully convicted him.  That he did so was beyond foolish, but apparently he is quite intelligence challenged with a borderline IQ and little education.

The reason for this is that law enforcement as a group, despite some manifest virtues under many circumstances, also have a terrible and often frightening recalcitrance once someone has been written out of their book of life, so to speak.  Trying to right that, if it has been wrongly done, degenerates into a naked power struggle on their part, where police as a group are impervious to evidence or reason and are capable of almost anything.  This is an extremely disturbing and dangerous state of affairs, and the institutional memory – and vindictiveness – is essentially limitless and perpetual.

We have said this many times:  exonerees should probably leave the country and live as obscurely as possible.

Second, when the police frame you a trial, even a jury trial, is no remedy.  Criminal charges are brought by government actors and at a trial they are conclusively presumed to be brought in good faith, as a practical matter.  If they are brought in bad faith, that’s an issue for a collateral procedure.  We could say quite a bit more about that but won’t right now.

As it happened, Mr. Avery’s lawyers went to trial, got hamstrung by judicial rulings and lost.  We’re not blaming them.  Indeed, in one scene in open court they were rather pointedly threatened:  a character sitting at the prosecutor’s table offered his view that if they pursued the theory that police had acted dishonestly and planted evidence, they did so “…at their own peril.”

We think if there’s evidence that the government is acting in bad faith, that has to be sorted out before we put their potential target on trial.  We believe that this is actually the law already, implicitly.  We harbor a probably irrational hope that it will soon be the law explicitly.

Third, the furthest Mr. Avery’s lawyers were willing to go was suspecting that this young woman disappeared and turned up dead, and law enforcement capitalized on the “fortuitous” incident to construct a phony case against their client.  But a far more sinister possibility exists.  It is implied as soon as you start going down the “frame-up” rabbit hole:  was this homicide a coincidence that law enforcement capitalized upon, or was it a homicide that they had a hand in arranging in the first place?  You can’t ignore that because the jury won’t.  Somebody killed the young woman and somebody has to be identified as the culprit.  “Common sense” defaults to whomever is officially accused.

Then again, offering evidence at your own trial that someone else is guilty is highly problematic, although it shouldn’t be.  We restrict a defendant’s ability to accuse someone else because it works too often, making acquittals easy and convictions difficult, the reverse of the current situation.

No one wants to believe that law enforcement as a group are guilty – or even capable – of what they must have done if Steven Avery is innocent.  And that includes us.  But what we want to believe or disbelieve is not the question.  Here is real “peril”:  when we decide that what we want is more important than the truth and we lie and cheat and obfuscate and even do violence to prevail.

It is the peril of zealous advocacy, and it is far more dangerous when practiced by the government.

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